Sexual Harassment FAQs, new in 2006, by My Employment Lawyer

A single, severe instance of physical harassment can be enough to file a lawsuit over. If you are afraid to go to work and cannot perform your job around the harasser, you should be able to file a suit, since the interference with your work appears to be unreasonable.

Q: When does the harasser cross the line of unreasonably interfering with my work?

A: It depends. Generally speaking, if a reasonable victim in your position would be afraid to come to work or get near the harasser, interference with your work is unreasonable. The reasonable victim rule is sometimes described as the “reasonable woman” rule. This term is a bit misleading, since both men and women can be victims of sexual harassment. However, the term means the courts will use a reasonable female's view of the sexual harassment when deciding whether the interference has become unreasonable for a female.

Q: The person harassing me is another woman. Can a file a lawsuit against her?

A: Yes, “same sex” harassment can be unlawful but the harassment must be sexual in nature or “because of sex.” A problem with sexual harassment law is that it does not prevent sexual preference harassment.

Q: When is same sex sexualharassment unlawful?.

A: Again, it depends on the facts. Consider three situations. All involve guys spending weeks together on an oil rig in the Gulf of Mexico. In the first situation, they harass an effeminate, male co-worker with sexual pranks, taunts and jokes and go so far as put a vulgar, sexually explicit picture of him on the lunch room wall. That would almost certainly be sexual harassment, even though done by other guys.

However, assume that the same victim is openly gay and the harassment is directed solely at his sexual preference. In that case, much of the same conduct would not be unlawful, since done in response to his sexual preference.

The hard case is where the harassment is directed at the victim because of a real or perceived sexual preference and is not based on the victim’s sex. There, the jury will have to decide if the harassment is based on or because of the victim’s sex and not her sexual preference.

Confusing? I agree. I believe that the distinction between unlawful “same sex” harassment and still lawful sexual preference harassment is almost impossible to make, much less justify. The distinction is not very meaningful. Sexual preference harassment is just as bad as any other type of sexual harassment and sometimes worse. Sexual harassment law should therefore prevent it, but currently does not.

Q: The harasser is not only the same gender as me but is also a customer. Is that still sexual harassment?

A: Any unwanted sexual conduct that interferes with your employment is sexual harassment. Generally speaking, harassment by a customer is unlawful, unless you unreasonably fails to file a complaint to make the harassment stop.

Q: The harasser is one of the company’s best customers. Is it reasonable to complain about the customer’s conduct?

A: If you want the harassment to stop, the answer is probably “yes.” The starting point is to find a copy of your employer’s sexual harassment policy. If your employer does not have one then your failure to complain is probably reasonable. Even then, if you can approach the owner about this, seriously consider doing so, with the advice of an attorney. The most effective way to stop harassment is with an appropriate complaint.

Q: My employer has a complaint process. Do I really have to complain about a customer?

A: Yes, if you want the harassment to stop. Read the complaint process and do your best to use it. They generally work. By law, your employer cannot retaliate against you for making a complaint.

Q: I know other employees have used the complaint procedure and it did not work. Do I still need to use it?

A: Maybe not, but consult an attorney for specific advice regarding your situation. As a general rule, you should use the complaint process to make the harassment stop unless you can prove it would be futile to do so. That may be difficult to do. The fact that the harassment continued after other employees made complaints is some evidence of futility, however.

Q: Are there any other times when I can file suit without going through the sexual harassment complaint process?

A: Yes. If the harasser is your boss or higher in the chain of command and caused you to suffer a tangible, adverse employment action, you may file suit without going through the employer’s complaint process.

Q: What is a tangible, adverse employment action?

A: Generally, it is something involving the loss of pay. The most common example is a termination for failing to submit to a boss’s demand for sexual favors. A transfer or shift change can also be a tangible, adverse employment action if it involves significantly worse working conditions.

Q: I put up with harassment as long as I could and then I resigned. Does that count as a tangible, adverse employment action?

A: Good question. If you were reasonable in the way you dealt with the harassment by, for example, using an available sexual harassment complaint policy to stop a co-worker from harassing you but it still went on, the answer is generally yes, as long as the harassment was such that you felt you had to quit.

Being forced to quit is known as a “constructive discharge.” When an employer does not actually fire you but makes or permits your working conditions to be so bad that a reasonable person in your shoes would feel compelled to resign, the law will treat the resignation as a discharge. You should definitely see an attorney before you resign if you plan to file suit for sexual harassment, however, because you will have the burden of proving a constructive discharge. It can be a heavy burden.

More: proving constructive discharge in Arizona.

Q: I have been putting up with harassment and have used the employer’s policy to make it stop, but it just keeps going and going. Do I have to quit before I file suit?

A: No. If the harassment creates an intimidating, hostile or offensive work environment and you have taken reasonable steps to stop it, you can go to court for an order to make it stop. You can also recover money damages for the emotional pain and suffering that you endured.

Q: What if the harassment is happening to someone else? Can I file suit against it?

A: Unless you are a victim of the harassment, the answer is generally, no. The law permits a suit only by a person injured by the harassment. A witness or bystander to the harassment does not have standing to sue to stop it, even if opposed to it.

More on the harassment of others.

If the harassment of the other person actually injures you, then you have standing to sue, even though the harassment is directed at someone else. This could be the case if the harassment of the other worker unreasonably interferes with your work or creates a hostile environment for you. Another example is where you help the victim by testifying or taking some other step to make it stop and suffer an adverse employment action as a result. In that case you are a victim of retaliation and can probably files suit.

Q: What does it mean that the harasser's conduct must be unwelcome?

A: "Welcome" is the line between unwanted sexual harassment and acceptable sexual attention. Workplace romances are lawful. Unwanted harassment is not. If the sexual conduct is offensive and not appreciated, you should say so. If you stay quiet or play along, the employer and harasser could claim that you did not find it unwelcome.

Q: If I file suit, what will I win?

A: The better question to ask is “what have you lost.” A lawsuit is designed to restore you to where you should have been absent the harassment. For victims who succeed at doing that, winning may feel like losing because they had to go through the pain of the harassment and the litigation process. That is, most people believe the best thing if for the harassment not to have happened in the first place.

That said, if you bring suit and a jury finds in your favor, a court can order your employer to:

stop the harassment,
restore you to work if fired or constructively discharged,
compensate you for lost earnings and benefits, past and possibly future,
compensate you for emotional pain and suffering and
award reasonable attorneys’ fees.

In some cases the court can award punitive damages as well.

Q: Do I have a case?

A: It depends. Always consult an employment lawyer for a specific answer. Even if you have a case, understand that it will cost tens of thousands of dollars in court costs and lawyer time to reach a verdict. In some cases you may find it is not worth filing suit, even if you have a case.

Q: What else can I do to stop sexual harassment?

A: Try to inform the harasser directly that the conduct is unwelcome and must stop. Next, use any employer complaint mechanism or grievance system available. You can also file a charge of discrimination with the EEOC or similar state agency.

The law considers prevention to be the best tool to eliminate sexual harassment in the workplace. As the EEOC suggests:

Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

More: after you make a sexual harassment complaint.

Do you want to consult your own employment attorney?

Schedule a consultation with Fortney & Klingshirn if you live in Northeast Ohio. If you live live elsewhere, search for a lawyer from your state.

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Sexual Harassment FAQs by Neil Klingshirn

Sexual Harassment FAQs

Sexual Harassment FAQs
by
Neil Klingshirn